from the this-will-all-seem-eerily-familiar-to-the-presiding-judge dept

A recent investigative report on the NYPD's surveillance of mosques has led to a possible revisiting of the Handschu Agreement by the federal judge presiding over a lawsuit filed against the city seeking to bar further surveillance of Muslims in New York City.

According to the 1985 ruling, the Handschu Agreement limited indiscriminate surveillance of purely political activity. If such surveillance was to take place, it first had to be approved by the three-member Handschu Authority and performed only by the specially-designated Public Security Section, a division of NYPD Intelligence. It also prohibited the videotaping or photographing of large public gatherings when there was no indication of criminal activity and forbade the sharing of information with outside agencies unless they agreed to be bound by the limitations of the Agreement.

The police measures directed at Muslims violate the Handschu decree "because they're not rooted in the fact that there's a criminal predicate," said plaintiff attorney Paul Chevigny. "They're rooted in the fact that the subjects are Muslims."

It was exactly as it looked: Muslims being placed under surveillance simply because they attended certain mosques -- mosques the NYPD had declared to be "terrorist organizations."

The city has countered by claiming that it closely observes the Handschu guidelines when making decisions about how to fight terror. A city lawyer, Peter Farrell, told the judge on Tuesday that the department launches investigations based on evidence of legitimate threats, not on religion.

"It's undeniable that New York City remains at the center of the threat by Islamists who have been radicalized to violence," he said.

[T]he activities that [CIA liaison Larry] Sanchez and [former senior CIA officer David] Cohen were proposing would not have been permitted under the Handschu guidelines. So, on September 12, 2002, Cohen filed a 23-page document in federal court asking a judge to throw out the guidelines and give his officers more leeway.

Cohen insisted that the world had changed since Al Qaeda attacked America, and the NYPD needed to change with it. “These changes were not envisioned when the Handschu guidelines were agreed upon,” he wrote, “and their continuation dangerously limits the ability of the NYPD to protect the people it is sworn to serve.”

The severely watered-down Handschu guidelines were approved by Judge Charles Haight. The name remained unchanged and most New Yorkers were unaware that hardly any limitations remained tied to the Agreement.

After securing this expanded definition (which also thoroughly abused the word "related"), the Demographics Group proceeded to declare entire mosques as "terrorist organizations" and began constant surveillance of their members. And, contrary to what the city's lawyer declared, it has yet to be proven by the NYPD or anyone else that New York is the "center of the threat by Islamists." The NYPD has spent millions of dollars and thousands of manhours surveilling and investigating Muslims and has turned up exactly zero useful leads.

When the plaintiffs filed this case, they had no idea the Handschu guidelines had been so thoroughly eviscerated. Armed with this new knowledge, the plaintiffs have asked the city to turn over so-called "investigative statements" related to these surveillance operations. The city won't even meet them halfway, offering only to turn over a "handful" for the plaintiffs' lawyers to view without making them part of the public record.

Technically, the city is correct: the NYPD is following the guidelines, as they have been altered, not as they were originally written.

The presiding judge says he will rule at a later date. However, one key factor is problematic. The presiding judge is Charles Haight, the same judge who agreed to relax those rules for the NYPD back in 2002. When he says something like this, it's hard to know how to take it.

"I've come to think of this case as a volcano that's asleep most of the time ... but every now and then blows up," U.S. District Judge Charles Haight said at the start of a hearing in federal court in Manhattan.

This "volcano" is at least partially of his own making. Haight knows how few restrictions remain under those guidelines. The NYPD can "closely observe" the relaxed Handschu guidelines and still place entire mosques under surveillance. The protections remaining are so weak and the scope of what is deemed "terrorist-related" so broad that even the CIA itself is unable to use the information collected by the Demographics Unit because doing so means violating CIA policies regarding domestic surveillance.

But it appears (although details are incredibly light) that Haight may revisit his own decision relaxing those guidelines. His upcoming ruling will determine whether the near-useless offer the city's lawyer made will be sufficient or if the city will need to cough up what's been requested: investigative statements related to "any operation targeting Muslims." Haight will also make the call as to whether the documents will remain "off the record."

The NYPD has never been very responsive when asked to turn over information, but considering this order may come from a federal judge, rather than a member of the public, the response time might be a little quicker. As for the plaintiffs, it would seem they drew possibly the least sympathetic judge to hear this case. But who knows, maybe Haight's had a change of heart over the years. Many rash legislative and legal decisions were made shortly after the 9/11 attacks and there have been more than a few who have expressed regret for their decisions or dismay at the continual expansion of already-broad policies. Haight might be one of the ones who regrets his decision. Fortunately, he's still in a position to make some changes.

from the an-ongoing,-audacious-failure dept

The NYPD's defenders claim that minorities will be the real victims if the stop and frisk program is neutered by court decisions and legislation. It's an odd claim considering minorities made up 88% of the unconstitutional stops, but that's the line of thinking up top.

The New York Police Department has secretly labeled entire mosques as terrorist organizations, a designation that allows police to use informants to record sermons and spy on imams, often without specific evidence of criminal wrongdoing.

Designating an entire mosque as a terrorism enterprise means that anyone who attends prayer services there is a potential subject of an investigation and fair game for surveillance.

Since the 9/11 attacks, the NYPD has opened at least a dozen "terrorism enterprise investigations" into mosques, according to interviews and confidential police documents. The TEI, as it is known, is a police tool intended to help investigate terrorist cells and the like.

Many TEIs stretch for years, allowing surveillance to continue even though the NYPD has never criminally charged a mosque or Islamic organization with operating as a terrorism enterprises.

"The guidelines stated that police could investigate constitutionally protected activities only when they had specific information that a crime was being committed or was imminent. Undercover officers could be used only when they were essential to a case, not as a way to keep tabs on groups that might be up to no good. Police were prohibited from building dossiers on people or keeping their names in files without specific evidence of crimes."

Over the years, constitutional protection has often been viewed as an impediment to investigative work. Just as the government pushed for warrantless wiretaps, location tracking and cell phone content searches, the NYPD pushed for uncontrolled access to anything it considered a hotspot for terrorists -- in this case, the city's many mosques. The bizarrely-named "Demographics Group" used the recent terrorist attacks in New York City as the justification for violating First Amendment protections.

[T]he activities that [CIA liaison Larry] Sanchez and [former senior CIA officer David] Cohen were proposing would not have been permitted under the Handschu guidelines. So, on September 12, 2002, Cohen filed a 23-page document in federal court asking a judge to throw out the guidelines and give his officers more leeway.

Cohen insisted that the world had changed since Al Qaeda attacked America, and the NYPD needed to change with it. “These changes were not envisioned when the Handschu guidelines were agreed upon,” he wrote, “and their continuation dangerously limits the ability of the NYPD to protect the people it is sworn to serve.”

Cohen painted a frightening picture of a nation—and a city—under siege from enemies within. “They escape detection by blending into American society. They may own homes, live in communities with families, belong to religious or social organizations, and attend educational institutions,” he wrote. “They typically display enormous patience, often waiting years until the components of their plans are perfectly aligned.”

He argued that America’s freedoms of movement, privacy, and association gave terrorists an advantage, one that left U.S. citizens painfully exposed. “The freedom of our society,” Cohen wrote, “has also made it possible for terrorist organizations to maintain U.S.-based activities.”

This 23-page document was, to put it lightly, bullshit. But it was a "masterpiece" of button-pushing, an exceedingly well-crafted bit of rhetoric that served as a justification blueprint for nearly every constitutionally-problematic NYPD program that followed. Cohen's combination of jargon and fearmongering won over Judge Charles Haight, who decided the "Handschu guidelines" were no longer applicable to today's terrorist-heavy world.

The new guidelines still contained one significant restriction: the department was forbidden from collecting or storing information related to First Amendment-protected activities (like worship and speech) unless it was "directly related" to criminal activity. This limitation obviously wasn't going to work for Sanchez and Cohen, so they did what the NSA has done -- expanded the definition of "related." Here's a quote by Sanchez that illustrates the type of spin deployed to loosen the restrictions.

“Part of our mission is to protect New York City citizens from becoming terrorists."

This is taken from a statement delivered to Congress. Unbelievably, no one questioned whether the NYPD should really be in the "business" of "protecting" New Yorkers from terrorist recruiting efforts. No one questioned the fact that widening the scope of its "mission" allowed the NYPD's mini-CIA to claim nearly everything and everyone in New York City was "related" to its investigations, thanks to nearly everyone being somehow susceptible to terrorist recruitment efforts. In fact, as NY Magazine points out, Congress "enthusiastically embraced" Cohen and Sanchez's views.

With anything and everything now "related" to the Demographic Group's investigations, the data poured in. And most of what was collected was completely useless. Well, "useless" if you believe the group was primarily there to catch terrorists. If you believe it was there to scoop up as much information as it could about mosque attendees and their non-mosque-related activities, then the program was firing on all cylinders.

About once a week, they filed reports on conversations they’d eavesdropped on. Nobody trained the rakers on what exactly qualified as suspicious, so they reported anything they heard. One Muslim man made it into files even though he praised President Bush’s State of the Union address and said people who criticized the U.S. government didn’t realize how good they had it. Two men of Pakistani ancestry were included for saying the nation’s policies had become increasingly anti-Muslim since 9/11. Muslims who criticized the CIA’s use of drones to launch missiles in Pakistan were documented.

The surveillance program grew, as unchecked programs tend to, expanding beyond even the loosely-defined targets.

Cohen and Sanchez’s efforts also reached beyond the Muslim community. Undercover officers traveled the country, keeping tabs on liberal protest groups like Time’s Up and the Friends of Brad Will. Police infiltrated demonstrations and collected information about antiwar groups and those that marched against police brutality.

So, now the Demographic Group was surveilling everyone the NYPD viewed with suspicion, including those who simply don't care to be brutalized by police officers. This program extended so far past its original point that even the FBI became concerned after Sanchez tried to sell it some of the Demographics Group's collected data, declaring the program was "targeting individuals and businesses without cause." Taking the files would have violated the FBI's rules.

Not only was the FBI concerned, but the CIA found the unit's work troublesome, especially as no one could point to any proven results of its activities.

Sitting with the NYPD, [senior CIA officer Margaret Henoch] felt a similar unease. She didn’t see how the Demographics reports could be used to draw conclusions. “I think this is a really impressive collection of what’s where, but I don’t understand how it helps you,” Henoch told the NYPD brass… She asked if there was some success story that summed up the program’s usefulness in its first two years. When she didn’t get an answer, she assumed that the NYPD was being coy with a potential rival. Even in the post-9/11 era, intelligence agencies often jealously guarded their secrets.

We've covered that exact lack of results here at Techdirt. Thousands of man-hours and millions of dollars spent, and the only success stories seem to involve questionable sting operations that set up unassuming chumps to take a fall on terrorism charges. The only outcome to date has been an impressive slate of civil liberties violations.

Even worse, despite years of wide collections, no one who ended up in a file was ever crossed off the list of potential terrorists. If the Demographic Group gathered anything on you, you were a suspect for life. The analogy Cohen used to sell the judge on the program -- "raking" through "coal" to look for "hotspots" -- turned out be a shovel that produced nothing more than bigger and bigger piles of coal.

Then came the most damning moment of all. The collection efforts failed when they mattered most.

In September 2009, the National Security Agency intercepted an e-mail from a taxi driver named Najibullah Zazi to an e-mail address linked to one of Al Qaeda’s most senior leaders. The message contained the line “the marriage is ready.”

Marriage and wedding were among Al Qaeda’s favorite code words for attacks, referring to the day that a suicide bomber met his brides, the maidens of the hereafter.

Trying to ascertain the scope of the plot, the NYPD searched the files of the Demographics Unit. Even though the rakers had canvassed Zazi’s neighborhood daily, and had even visited the travel agent where he bought his tickets between New York and Colorado, there was not a single piece of useful information.

Here's where the NYPD's mini-CIA meets the real CIA and its more secretive, more sinister big brother, the NSA. All of these agencies, handling rakes or pitchforks or whatever in order to comb through haystacks and piles of coal, collaborated to search for that one ember, that one needle -- and came up with nothing.

Harvesting massive amounts of data simply because you've carved yourself a loophole in the Constitution not only abuses the trust of American citizens, but it does so in exchange for "collections" that are 99.9-100% useless. The defenders continue to claim every bit of this extraneous information is somehow "relevant" or "related," but when it comes time to put it all to work, the dots fail to connect. See also: the Boston Bombing.

Kelly still believes this program is useful and violates no one's rights. Of course he feels this way. Citizens are merely data points or potential criminals or, very frequently, both. The only people he trusts are members of his police force. Everyone else is a name on a file, collected and observed simply because someone gave the NYPD the permission to do it.